State Consumer Disputes Redressal Commission
Rathod Swaroopa vs 1.Liberty Videocon General Insurance, on 16 May, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.43/2018
Between :
Ms. Rathod Swaroopa, D/o. Rathod Balaram,
Aged about: 38 years, Occ: Proprietor of Kirana Shop,
R/o. H.No. 6-42, Khajapur Village, Kalher Mandal,
Sanga Reddy District, Telangana - 502287.
... Complainant
And
1. Liberty Videocon General Insurance,
Rep. by its Manager, # 6-3-885/7, 3rd Floor,
Sapphire Square, Rajiv Gandhi Circle,
Somajiguda, Hyderabad, Telangana - 500082.
2. Liberty Videocon General Insurance,
Rep. by its Manager, #10th Floor,
Tower A, Peninsula Business Park,
Ganpat Rao KadamMarg, Lower Parel,
Mumbai - 400013. ... Opposite parties
Counsel for the Complainant : M/s. K. K. Hanumandlu
Counsel for the Opposite Parties : M/s. B. Papa Reddy
QUORUM: HON'BLE SRI V.V.SESHUBABU, MEMBER
& HON'BLE SMT R.S. RAJESHREE, M EMBER TUESDAY, THE SIXTEENTH DAY OF MAY TW O THOUSAND TW ENTY THREE Order : (Hon'ble Smt R.S. Rajeshree, M ember)
1. This is a complaint filed by the Complainant under Section 17 (1) (a) (i) the Consumer Protection Act, 1986, praying this Commission to direct the Opposite Parties:
(i) To direct the opposite parties to pay sum of Rs.13,50,000/-
(Rupees Thirteen lakhs and Fifty thousand only) @24% interest, i.e., from the date of claim till realization of amount.
(ii) Direct the opposite parties to pay a sum of Rs.5,00,000/- for mental agony, pain & suffering.
(iii) Hospital and Travelling charges of Rs.1,50,000/-.
(iv) A sum of Rs.10,000/- towards legal expenses and costs.
2(v) To grant such other consequential relief or reliefs as the court may deem fit and proper in the facts and circumstances of the case and in the interest of justice.
2. Briefly stated facts of the case are that the complainant had taken an accident policy from the opposite parties vide policy No. 4111-500101-16-7001254-00-001 by paying a premium of Rs.3,809/- and the said policy was named as "liberty Videocon individual personal accident policy" and the same was valid from 08.09.2016 to 07.09.2017. And that on 05.10.2016 when, she along with her brother was travelling from Banswada to Narayankhed in Maruthi Swift Car bearing No. TS 15EG 8595 and when the car reached near Nizampet Village, Sangareddy District at about 9 PM a container lorry bearing No. HRW 5Y8043 coming from opposite direction was driven in rash and negligent manner and dashed the car of the complainant due to which the complainant and her brother were badly injured and were immediately shifted to Government Hospital, Narayankhed and on the advice of the Doctors of Government Hospital they were shifted to Maxcure Hospital, Hitech City, Hyderabad. And the complainant was diagnosed "device (2x3 cm) about the left eye) (dark brown flesh). Bleeding from left eye. Laceration (4x5 cm) at left knee". The Doctors at Maxcure Hospital advised surgery for the left eye of the complainant and shifted her to LV Prasad Hospital for surgery and her left eye was removed. And the police at Narayankhed registered a crime vide No. 247/2016 for the offence U/Section 337 and 338 of IPC. Immediately after the accident the complainant made a claim to the opposite party, the opposite party verified all the medical reports and confirmed the claim and also agreed to pay the 50% of the sum insured amount i.e., Rs.15,00,000/- but had only deposited Rs.71,684/- on 30.12.2016 and again Rs.78,316/- on 17.04.2017. In total the opposite party had made a payment of Rs.1,50,000/- and failed to make balance payment of Rs.13,50,000/- and on repeated requests of the complainant the opposite party had informed that the total policy amount is Rs.3,00,000/- only and hence the 50% of the same has been paid as per clause-3 of the policy. And after several representations for the balance amount the opposite party vide letter dated 06.07.2017 has repudiated the balance claim on the following ground i.e., "with 3 reference to subject claim during investigation it has been certified by District Medical Officer Certificate with Disability 65% (copy enclosed) and also you are receiving monthly of Rs.1,500/- towards disablement pension from the Government of Andhra Pradesh (copy enclosed). We would like to bring to your kind notice that proposal form which is submitted to M/s. Liberty Videocon General Insurance Company at time of taking policy, your healthy condition is not disclosed and mentioned as 'not applicable'. In this regards we would like to seek clarification, despite knowledge your health condition why same has been not disclosed proposal form you are requested to write within 7 days of receipt of this communication".
3. The complainant further submits that she had given all the information to the agent of the opposite party who has approached her and also the medical reports along with disability certificate while taking the policy. And as she had studied only 7 th class that too in Telugu Medium she cannot read and understand the terms and conditions of the policy and the agent also failed to explain the terms and conditions of the policy. And that the policy is an accident policy and as per the said policy under part-III Clause-3 the total claim that the insured is entitled for each eye is 50% of the sum assured and as the policy is of Rs.30,00,000/-. The complainant is entitled for Rs.15,00,000/- the present complaint is filed for balance sum of Rs.13,50,000/-. This act of repudiating the claim of the complainant by the opposite party amounts to deficiency of service which has caused emotional distrust and mental agony to the complainant. As such, she is entitled for the balance amount with interest, compensation and costs. Having no other alternative the present complaint is filed seeking the above reliefs.
4. Written Version of Opposite Party No.1 & 2:-
The opposite parties filed their written version while admitting the issuance of policy and subsistence of the policy had pleaded that this Commission has no pecuniary jurisdiction to entertain the complaint since the total claim of the complainant is Rs.20,10,000/-. Which is beyond the pecuniary jurisdiction of this 4 Commission. And in support of the same relied on M/s. Maharani of India V/s. United India Insurance Co. Ltd., And further pleaded that the Insurance Policies are issued based on utmost good faith and the complainant had not disclosed in her proposal form with regard to her physical disability. And that the complainant has 65% of the physical disability. Thereby effecting the decision of the opposite party in accepting the risk and issuing the policy. And that the claim of the complainant has been repudiated after going through all the material records and due application of mind as such, the said repudiation cannot be termed as deficiency of service. And in support of the same relied on Rabneeth Singh Bagga V/s. KLM Royal Duch Airlines.
5. National Insurance Co. Ltd., V/s. Sri Srinivasa Catton Traders.
6. Rajastan Financial Corporation V/s. SC Jain (SC). And in the proposal form when a specific question was posed with regard to previous/existing injury/disability the complainant had answered in negative and had given the declaration and authorization which is as under I/W e hereby declare, on my behalf and on behalf of all persona proposed to be insured, that the above statements, answers and/or particulars given by me are true and complete in all respects to the best of my knowledge.............." " I understand that the information provided by me will form the basis of the insurance policy......................." copy of Proposal Form is annexed hereto as "Annexure OP2".
7. The complainant had given the above declaration and believing the same this opposite party had issued the policy. And the medical certificate issued by LV Prasad Eye Institute on 17.11.2016 wherein it was mentioned as "she was advised fit to resume her duties". And based on the above certificate the claim of the complainant was processed under TTD (Temporary Total Disablement) and based on the said clause a sum of Rs.71,684/- was paid to the complainant. As the assed amount was below Rs.1,50,000/- the claims assessor had relied of the documents 5 submitted by the complainant and processed the claim without initiating any investigation. But again the complainants approached the opposite party with certificate of loss of vision in left eye and requested the opposite party to treat her claim as PPD (Permanent Partial Disability) and this opposite party was under
impression that the sum insured is Rs.3,00,000/- and based on part-III clause-3 of policy had made a further payment of Rs.78,316/- on 17.04.2017 based on 50% of the sum insured. And after the same the complainant once again made a representation to the assessor that the policy is of Rs.30,00,000/- and as per part- III clause-3 she is entitled for Rs.13,50,000/-.
8. Having received the said request the opposite party had cross checked the policy amount and as such, appointed an investigator to investigate into the facts of the case. The said investigator M/s.
Medi Probe Services. After thorough investigations had submitted the report dated 21.04.2017 and in the said report had given following findings. "insured is handicapped since childhood she is enrolled as a handicapped with State Government and receives monthly fund of Rs.1,500/- as handicapped financial assistance". And the investigator also provided with the copy of said certificate of disability. And also a letter from the father of the complainant affirming that the complainant is handicapped by birth. And based on these two documents this opposite party had realized that the complainant has concealed the material fact of her disability, and by mis-representation had obtained the policy thereby effecting the decision making of the insurance company with regard to the risk and calculation of the premium. And on seeking the explanation the complainant had given two letters but the fact was that the complainant has obtained the policy by misrepresenting her disability as such, she is not entitled for any of the insurance claim and this opposite party is taking steps to recovery the amount which has been already paid to the complainant i.e., Rs.1,50,000/-. Hence, there is no deficiency on their part and the repudiation was based on investigation report and documentary proof. Hence, the complainant is not entitled for either insurance claim or any compensation and prayed that the complaint be dismissed with exemplary costs.
69. Complainant filed his evidence affidavit as PW1 and on behalf of opposite parties No. 1 to 2 Miss. Shraddha Kinare, Legal Manager of opposite party No. 2 filed her evidence affidavit on behalf of herself and opposite party No. 1.
Heard both sides and perused the record now the points that arise for consideration are:-
1. Whether this Commission has pecuniary jurisdiction to entertain this complaint.
2. Whether the opposite parties have been deficient in the services?
3. Whether the complainant is entitled for the relief sought in the complaint.
4. If yes, to what extent?
10. Point No.1 :- The specific case of the complainant is that she has taken an accident policy from the opposite parties and the sum insured of the said policy was Rs.30,00,000/- and as per part III, clause 3 of policy for the loss of one eye, the sum insured is 50% of the total sum assured, which comes upto Rs.15,00,000/-. And while the policy was in subsistence she met with an accident, and in the said accident she was seriously injured and her left eye was removed, which has left her permanently disabled with one eye. And after the said accident when a claim was made the opposite party had partly honoured the claim and paid a sum of Rs.1,50,000/- and on repeated requests for balance payments the opposite party had repudiated the claim. Hence the present complaint, seeking balance insurance amount along with interest & compensation in support of her case the complainant got marked Ex.A1 to Ex.A12.
11. On the other hand the opposite party had taken a preliminary objection of pecuniary jurisdiction and relied on M/s. Maharani of India Vs. United India Insurance Company ltd. And contented that in the said Revision petition the Hon'ble NCDRC had held that in an insurance case the premium paid added with 7 compensation claimed would determine the pecuniary jurisdiction of the Commission. And based on the above RP the opposite party had contended that the complainant in order to file the matter before this Commission had included the sum insured amount along with compensation and cost and filed the case before this Commission whereas the premium paid by the complainant is only Rs.3,809/- and the compensation claim is Rs.5,00,000/-, hospital charges Rs.1,50,000/- and Rs.10,000/- towards costs which comes upto Rs.6,63,809/- and which is below Rs.20,00,000/- hence this Commission does not have pecuniary jurisdiction to entertain this complaint. But however, as per Section 11 (1) of CP Act, 1986 the pecuniary jurisdiction is as under: 17. Jurisdiction of the State Commission:- (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed (does not exceed rupees One Crore).
12. The opposite party except citing the above revision petition, had not filed any other proof to show that the same has been confirmed by the Apex Court nor any proof that there after the same pattern has been adopted by all other courts in order to calculate the pecuniary jurisdiction. In such case, finding given in one RP cannot be considered to calculate the pecuniary jurisdiction. And as per Section 17 (1) of CP Act, the present complaint is well within the pecuniary jurisdiction of this Commission. Hence, the point is answered in favour of complainant.
13. Point NO. 2 & 3 :- Before we proceed with the merits of the case we would like to mention a few facts that are undisputed.
Issuance of policy is not in dispute 2. subsistence of policy is not in dispute 3. Occurrence of accident is not in dispute.
14. But however it is the contention of the opposite party that, initially when a claim was made, based on the medical certificate produced by the complainant, wherein it has been stated as "She was advised fit to resume her duties." Based on the said certificate 8 and considering the complainants case as TTD (Temporary Total Disablement) the insurance company paid the insurance amount of Rs 71,684/- on 30/12/2016. But subsequently the complainant approached the opposite party with a certificate from Ophthalmologist, certifying loss of left vision, the opposite party treated the claim under PPD (Permanent Partial Disability) and by mistake thought that the total sum assured is Rs.3,00,000/- and 50% of which comes to Rs.1,50,000/- paid the balance amount of Rs.78,316/- through NEFT on 17.04.2017 without initiating any investigation. And again when the complainant made a representation for balance payment, the opposite party had realised that the total sum assured is Rs.30,00,000/- (Rupees Thirty lakhs) and got an independent investigator appointed and got the claim investigated and during the investigation it has come to light that the complainant is a physically disabled person by birth and drawing pension from the Government but however concealed the said fact in the proposal form. And when a specific question was posed with regard to disability the same was answered in negative.
15. In view of said suppression of fact, false declaration and misrepresentation the opposite party had repudiated the claim as per terms of policy and was taking steps for recovering the Rs.1,50,000/- that was already paid to the complainant.
16. But it is the specific contention of the complainant that she is only 7th passed that too in Telugu Medium and that she had handed over all the medical documents and documents pertaining to the disability to the agent, and agent never explained the terms of the policy.
17. Now the point that arises is whether the opposite party was justified in repudiating the claim on the ground of mis- representation or non-disclosure of physical disability.
The opposite party had filed Ex.B1 proposal form, B5 investigation report, B6 disability certificate of complainant.
918. A perusal of Ex.B1 proposal form reveals that the first 3 pages are not signed by the complainant only last page is signed by complainant in Telugu, and the form is filled in English. And does not bear any affirmation that the contents were read over and explained to the proposer in Telugu, in the absence of the same at no stretch of imagination it can be believed that the agent of the insurance company had filled the proposal form as accurately as stated by the proposer. And it is contention of the opposite parties that the complainant has 65% Locomotar disability which implies that such disability would be visible for any prudent man with naked eyes. In such case we wonder how the agent of the opposite party could not notice such physical disability of the complainant. And as said supra when the complainant has not signed each page of the proposal and had affixed her signature in Telugu which was filled in English can the complainant be held responsible for mis- representation. The opposite party counsel had vehemently argued that having signed the declaration and authorization stating that all the particulars stated are true and correct but had misrepresented and concealed the fact of disability. When the declaration is not explained to the complainant in Telugu can she be held liable for mis-representation.
Further under Ex.B5 investigation report the investigator has recommended as follows "Investigation of policy/agent. This is a part of fraudulent activity by an organised group and investigation of this racket is recommended".
19. That apart the policy issued is an Accident Policy which provides protection for the policy holder in case of an accident. And in the instant case there is no nexus between the cause of accident and the physical disability of the insured. It is not the case of the opposite parties that as the insured was disabled person, she met with an accident, any able bodied person is also at risk of accident.
20. In view of such recommendations made by an investigator the complainant cannot be put to suffer loss or be deprived of insurance amount due to the fraudulent acts of agent. The opposite party is silent as to what steps have been taken against such agent.
10The opposite party had contended that the complainant had not denied or rebutted the documents more particularly Ex.B6 disability certificate. It is not at all the case of the complainant that she is not disabled, but it is her case that disability was informed to the agent, who had filled the proposal form in such case the complainant cannot be held responsible for the acts of agent. The opposite party had relied on Ravneet Singh Bagga Vs. LKM Royal Duch Airlines and Rajasthan Financial Corporation Vs. S.C. Jain but in both these cases the Hon'ble Supreme Court had held that when there is no deficiency of service proved the opposite party cannot be held liable to pay any compensation. But it is not the same in case in hand.
21. Based on the foregoing discussion we are of the emphatic view that it was unfair on the part of opposite parties to repudiate part of the claim and the points are answered in favour of complainant.
In the result, the complaint is allowed in part directing the opposite party No. 1 & 2. Jointly & severally.
(i) To pay the balance insurance amount of Rs.13,50,000/- with interest @ 6% per annum from 20.06.2018 (Ex.A9) till realization.
(ii) To pay costs of Rs.20,000/-.
Time for compliance is 30 days from the date of receipt of this order.
SD/- SD/-
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MEMBER(M-J) MEMBER (M-NJ)
Dt:16.05.2023.
BSR
11
APPENDIX OF EVIDENCE
WITNESS EXAMINED
Evidence affidavit of Evidence affidavit of
The complainant Opposite party No.1 & 2
Miss. Rathod Swaroopa M iss. Shraddha Kinare
EXHIBITS MARKED
For Complainant:
Ex.A1: is the Photostat copy Liberty Videocon Individual Personal Accident Policy Endorsement Schedule, dated 21.08.2017. Ex.A2: is the Photostat copy of First Information Report, dated 06.10.2016.
Ex.A3: is the Photostat copy of Discharge Summary, dated 10.10.2016.
Ex.A4: is the OriginaL copy of BIPC1610100004 Service Details. Ex.A5: is the Photostat copy of Email.
Ex.A6: is the Photostat copy of Email.
Ex.A7: is the Photostat copy of Statement of Account, dated 07.10.2017.
Ex.A8: is the Photostat copy of Aadhar Card.
Ex.A9: is the Photostat copy of Demand Notice, dated 20.06.2018. Ex.A10: is the Original copy of Reply Notice, dated 06.07.2018. Ex.A11: is the Original copy of Postal Receipt, dated 19.07.2018. Ex.A12: is the Photostat copy of Track Consignment.
For Opposite Parties:
Ex.B1: is the Photostat copy of Liberty Videocon Individual Personal Accident Policy Proposal form (Flexi Plan Options). Ex.B2: is the Photostat copy of Liberty Videocon Individual Personal Accident Policy, Policy Schedule.
Ex.B3: is the Photostat copy of Liberty Videocon Individual Personal Accident Policy Claim Form.
Ex.B4: is the Photostat copy of Investigation Report, dated 17.11.2016.
Ex.B5: is the Photostat copy of Liberty Videocon General Insurance Company Investigation Report, dated 21.04.2017. Ex.B6: is the Photostat copy of Government of Andhra Pradesh Certificate for Person with Disability, dated 04.08.2010. Ex.B7: is the Photostat copy of Father's Statement of Opposite Party dated 18.04.2017.
Ex.B8: is the Photostat copy of Letter, dated 08.07.2017. Ex.B9: is the Photostat copy of Letter, dated 01.08.2017.
SD/- SD/-
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MEMBER(M-J) M EMBER (M -NJ)
Dt:16.05.2023.
BSR